TB3-07975

RAD File No. / N° de dossier de la SAR : TB3-07975 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX (a.k.a. XXXX XXXX XXXX XXXX) Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision January 23, 2014 Date de la décision Panel C. Forbes Tribunal Counsel for the person(s) who is(are)the subject of the appeal Ochiemuan Okojie Conseil(s) du (de la/des) personne(s) en cause Designated Representative(s) N/A Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du (de la) ministre Reasons and Decision [1] XXXX XXXX XXXX (a.k.a. XXXX XXXX XXXX XXXX), a citizen of Nigeria, appeals a negative decision of the Refugee Protection Division (RPD) dated October 8, 2013. DETERMINATION [2] Pursuant to Section 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the Refugee Appeal Division (RAD) confirms the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. The appeal is dismissed. BACKGROUND [3] The Appellant alleges that her problems began following the death of her husband on XXXX XXXX XXXX 2005. After the death of her husband, his half-brother, described by the Appellant as a strong politician in Nigeria, advised the Appellant that, in accordance with custom and tradition, she must marry him and also bear him children. [4] The Appellant alleges that her brother-in-law became hostile and threatened, beat and raped her. The Appellant reported the incidents to the police who would not assist her. The Appellant fled to Abuja where her brother-in-law was able to locate her. She then fled to Ibadan where she feared that he would find her. [5] The Appellant, in XXXX 2007, went to Jamaica where she worked XXXX XXXX XXXX. She received a telephone call in Jamaica, from her children informing her that her brother-in-law had threatened to harm them if they did not give him the Appellant's telephone number, which the Appellant agreed to do. The Appellant alleges that her brother-in-law telephoned her and continued to threaten her. [6] In 2010, the Appellant was advised by her daughter that her brother-in-law was coming to Jamaica to find her. The Appellant moved to Bermuda where she met a family friend who wanted to know her address. She refused to give it to them. [7] On XXXX XXXX XXXX 2013, the Appellant's children contacted her and informed her that her brother-in-law knew that she was in Bermuda and that he was going to arrange for someone to throw acid on her. The Appellant left Bermuda for Canada where she claimed refugee protection. [8] The Appellant provided testimony that, in XXXX 2012, she travelled back to Nigeria for approximately one month for her daughter's wedding. She alleged that she returned because her daughter said that she would kill herself if she did not appear at the wedding. The Appellant alleged that she remained in a safe place, and her return was not known to her husband's family. [9] The Minister intervened in the claim for refugee protection by paper only with respect to the issue of credibility, in particular with respect to the Appellant's re-availment to Nigeria, whether her behaviour of posting photos on Facebook indicated a lack of subjective fear and whether the Appellant resided in the United States. The Minister provided evidence of biometric results which indicated no match to the United States.1 [10] In its reasons, the RPD made the following findings: 1. The Appellant is a citizen of Nigeria. 2. There is reason to doubt the Appellant's truthfulness. 3. There are contradictions, inconsistencies, omissions and implausibilities in the Appellant's evidence and these went to the heart of the claim and undermined her credibility. The explanations provided were not satisfactory in resolving these issues. 4. The RPD draws a negative inference from the lack of corroborating documentation and finds that the Appellant's brother-in-law does not have the power or position alleged by the Appellant. 5. The Appellant's trip to Nigeria was not mentioned in her port of entry documentation nor was it mentioned in her Basis of Claim (BoC) form. 6. The panel drew a negative credibility inference from this clear and deliberate omission. 7. The lack of documentation to support her reasons for re-availment directly undermines her credibility and finds the reasons stated for her return are not credible. 8. The Appellant's explanation for returning to the location of alleged persecution from a safe country to be not reasonable and not credible. 9. The Appellant's return to the place where the harm was feared does not support a finding that the fear existed or was genuine. 10. The Appellant's re-availment to Nigeria speaks to her lack of subjective fear and causes the panel to draw a negative inference. [11] The Appellant submitted an appeal of the negative determination on November 16, 2013. [12] The Minister did not intervene in this appeal. [13] In the appeal, the Appellant made the following submissions: 1. The RPD perversely erred and committed errors when it rejected the Appellant's claim. 2. The Appellant submits that the panel perversely erred when it impugned her credibility. 3. The RPD misconstrued the evidence and did not indicate that her brother-in-law was a high profile politician within the government. 4. The RPD ignored relevant evidence and committed an error in its assessment of the evidence regarding the lack of evidence, and the profile and political status of the Appellant's brother-in-law. 5. The RPD perversely erred when it concluded that the Appellant lacked subjective fear because of her re-availment to Nigeria. [14] The Appellant submitted affidavits from her daughter and her daughter's father-in-law, dated November 11, 2013. [15] The Appellant submits that: The RAD should set aside the impugn RPD decision and substitute it with a positive decision or alternatively refer the matter back for re-determination with a hearing because of the aforementioned errors central to the impugned decision of the RPD. [16] The Appellant is asking for an oral hearing under subsection 110(6) of the Act. In the event of a hearing, the Appellant requests that such a hearing be in English and that no interpreter is needed for such hearing and that it be held in Toronto. STANDARD OF REVIEW [17] As outlined above, the Appellant alleges that the RPD made errors in its decision. The alleged errors concern credibility and negative inferences which are errors of fact. [18] The Appellant makes no submissions on the issue of the standard of review. [19] Although IRPA sets out grounds for appeal as well as possible remedies, it does not specify the standard of review to be applied by the RAD. [20] In assessing and selecting the appropriate standard of review for findings of fact, the RAD considered the factors outlined in Newton v. Criminal Trial Lawyers' Association,2 which take into account the list of factors in Dunsmuir.3 The Newton factors include: a) the respective roles of the tribunal of first instance and the appellate tribunal, as determined by interpreting the enabling legislation; b) the nature of the question in issue; c) the interpretation of the statute as a whole; d) the expertise and advantageous position of the tribunal of first instance, compared to that of the appellate tribunal; e) the need to limit the number, length and cost of appeals; f) preserving the economy and integrity of the proceedings in the tribunal of first instance; and g) other factors that are relevant in the particular context. [21] The Newton factors deal with the standard of review to be applied by an appellate administrative tribunal to the decision of an administrative tribunal of first instance, and, as such, these factors are very relevant to the relationship between the RPD and the RAD. Based on the guidance in Newton, the RAD focused on the factors listed below to determine the standard of review. The Supreme Court of Canada, in Khosa,4 noted that the factors in deciding the standard of review are not a checklist of criteria: a contextualized approach is appropriate in deciding which factors are most relevant. In assessing the relationship between the RAD and the RPD with respect to the Newton factors, the RAD considered the following three most significant factors: * the respective roles of the RPD and the RAD in the context of IRPA; * the expertise and advantageous position of the RPD member compared to that of the RAD; and * the nature of the question in issue. [22] Both the RPD and the RAD derive their jurisdiction from and interpret the same statute: the IRPA. Section 162 of IRPA gives each Division the same powers, including the Refugee Protection Division, "in respect of proceedings brought before it under this Act, sole and exclusive jurisdiction to hear and determine all questions of law and fact, including questions of jurisdiction." With respect to the respective roles of the RPD and the RAD in the context of IRPA, the powers of each Division are the same, although their roles are not the same. It is the primary role of the RPD to hear testimony, review evidence and determine a claim on its merits, while the RAD reviews those determinations based on questions of law, fact, or mixed fact and law. However, the fact that the RAD may, where appropriate, substitute a different determination than that made by the RPD does make its role similar to the RPD in that each Division is engaged in refugee determination. [23] The RAD decides appeals of RPD decisions related to refugee protection on questions of law, of fact, or of mixed law and fact;5 however, the presence of a right of appeal in and of itself does not warrant a correctness standard of review given the proscribed relationship between the RPD and the RAD, and the limits imposed on the RAD in IRPA, highlighted below. [24] The RPD is a tribunal of first instance which has been given the authority in IRPA to make a decision to accept or reject a claim for protection.6 RPD members have expertise in interpreting and applying IRPA and as well are experts in assessing claims based on country conditions. The RPD must conduct a hearing7 and assess the totality of the evidence, including evidence related to the credibility of the Appellant and witnesses, after it has had an opportunity to see the claimants, hear their testimony and question them. The RPD has expertise in making findings of fact after evaluating, first hand, the testimony of witnesses. [25] In contrast to the RPD's authority to assess a claim for protection, IRPA limits the RAD's ability to gather and consider evidence. The RAD is not a tribunal of first instance but exists to review the decision made by the RPD. The RAD must proceed without a hearing on the basis of the record, submissions by the parties, and new evidence.8 The RAD's authority to consider new evidence and hold hearings is limited to evidence that arose after the rejection of the claim or that was not reasonably available, or that the person could not reasonably have been expected in the circumstances to have presented, at the time of the rejection.9 Oral hearings are limited to circumstances where the new evidence raises a serious credibility issue.10 [26] Given that the RPD has held a hearing on the totality of the evidence and given that the RPD has heard from the Appellant directly at a hearing, and given that the RAD's authority to consider new evidence is limited in IRPA, the RPD is in the best position to assess the credibility of the Appellant and to make findings on issues of fact, and mixed law and fact related to the claim. This position is consistent with Newton, at paragraph 82, where it indicates with respect to the appellate division that: "The Board is not a tribunal of first instance, and cannot simply ignore the proceedings before the presiding officer, and the conclusions reached by him".11 [27] Newton concludes that: "a decision on such questions of fact by the presiding officer, as the tribunal of first instance, are entitled to deference. Unless the findings of fact are unreasonable, the Board should not interfere".12 Newton adopts the definition of "reasonableness" in Dunsmuir. Reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process of the RPD and that the RPD's decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.13 [28] In the case at hand, the Appellant alleges that the RPD made errors of fact. As such, the nature of the question at issue is one of fact. Given the analysis above, the RAD therefore has afforded a considerable level of deference to RPD findings on questions of fact in this claim and will consider whether the findings meet the reasonableness test. Admissibility of New Evidence Presented on Appeal [29] Section 110(4) of IRPA indicates that: "the person who is the subject of the appeal may present only evidence that arose after the rejection of their claim or that was not reasonably available, or that the person could not reasonably have been expected in the circumstances to have presented, at the time of the rejection." [30] The following evidence was submitted by the Appellant to the RAD and must first meet the statutory test described above in order to be admissible: 1. Affidavit from her daughter, Mrs. XXXX XXXX XXXX XXXX XXXX XXXXthe Appellant's daughter, dated November 11, 2013. 2. Affidavit from XXXX XXXX XXXX XXXX, father-in law to the Appellant's daughter, dated November 11, 2013. [31] The Appellant's refugee claim was rejected on October 8, 2013. The affidavits14 meet one prong in the test in Section 110(4), as they were created and sworn after the rejection of the Appellant's claim. [32] Even if the affidavits were new evidence pursuant to section 110(4), this does not, however, require the RAD to admit the documents into evidence without any further consideration. In Raza,15 the Federal Court of Appeal set out factors to be considered in assessing "new" evidence. While Raza predates the introduction of IRPA, Section 110(4), it is based on the very similar wording of Section 113(a). The Court held that new evidence should be considered for its credibility, relevance, newness, and materiality, in addition to any express statutory provisions.16 [33] The RAD finds the affidavits fail on the second prong in that the information contained therein is not new and could reasonably have been expected in the circumstances to have been presented at the time of the rejection" to the RPD. The Appellant submits that "the affidavit evidence from her daughter and her father-in-law in Nigeria is new evidence because this evidence was not available to the Appellant during her hearing and rejection of her claim." The Appellant further submits that her daughter and father-in-law were on vacation and were not in Nigeria at the time of the Appellant's hearing. The RAD rejects this explanation. The Appellant was represented by legal counsel throughout the process of filing for refugee protection and at her hearing. The Appellant did in fact present to the RPD sworn affidavits, dated July 5, 2013, from her son, XXXX XXXX XXXX, and her sister, XXXX XXXX,17 before her refugee determination hearing which indicates that she was aware of her requirement to provide evidence in support of her application. In addition, the new evidence came from the Appellant's daughter and father-in-law and no evidence was presented by the Appellant to indicate that she could not have asked them for evidence before the hearing. The affidavits explain her reasons for her return to Nigeria. Given that the Appellant is claiming a fear of persecution in Nigeria, she could reasonably been expected to submit such documents to the RPD in support of her claim. The RAD finds that this document is not admissible as new evidence. [34] For the reasons set out above, the RAD finds that none of the Appellants new evidence is admissible in this appeal. ANALYSIS OF THE MERITS OF THE APPEAL [35] The RAD focused on the determinative issue: Did the RPD err in making negative credibility inferences? Issues of Credibility Return Trip to Nigeria [36] The Appellant argues that the RPD perversely erred when it impugned the credibility of the Appellant for not disclosing in her claim the fact she went to Nigeria on XXXX XXXX, 2012 to attend the wedding of her daughter. The Appellant submits that she explained to the RPD why she failed to disclose these facts in her claim because she was advised by some people she met in church in Toronto that, if she disclosed in her claim the fact that she went to Nigeria, her claim would be rejected, and she would be sent home so she was afraid to disclose it to Immigration. The Appellant submits that the RPD committed an error when it impugned her credibility because, in assessing her testimony and evidence, the panel member "failed to determine the impact such information would have on claimants such as the Appellant who are new in a country and fearing persecution that their claims would not be accepted if they disclose certain facts." [37] The Appellant was represented by legal counsel throughout the process of filing for refugee protection and at her hearing who could have counselled the Appellant in the benefits of being truthful with regard to the facts that would be considered in the determination of her claim for protection. The RPD stated that the Appellant had affirmed the truthfulness of the Basis of Claim (BoC) form in which she had also deliberately withheld this information. The RAD finds the RPD did not err, and its rejection of her explanation and finding that the Appellant knowingly withheld information that she returned to Nigeria when she completed her initial forms to apply for refugee protection was reasonable. [38] The Appellant argues the panel member perversely erred when it impugned the credibility of the Appellant because she did not provide evidence which corroborates her reasons for going to Nigeria. The Appellant submits that, at the hearing, she testified that she told her family in Nigeria that she did not disclose the fact that she was in Nigeria to Immigration. The Appellant further submits that, at her hearing, the fact that she went to Nigeria was no longer an issue but only her reasons for going to Nigeria because it was evident from her testimony that the Minister's disclosure and her Facebook that she actually went to attend her daughter's wedding. [39] The RPD stated that it was clear that the Appellant only came forth with this information when the Minister produced pages from the Appellant's Facebook clearly showing her to be in Nigeria at the time in question. The panel drew a negative credibility inference from this clear and deliberate omission. [40] The Appellant provided testimony that she spoke with her daughter in XXXX2011 and was informed by her daughter that she was getting married in XXXX 2012; however, she told her daughter that she could not attend her wedding. The Appellant further testified that she was contacted by her daughter's future father-in-law and told her daughter was on a hunger strike because she was not going to attend her wedding. [41] The RPD noted in its analysis that the Appellant did not provide any documentation to confirm her daughter's state of mind in XXXX 2011, which led to her returning to Nigeria nor were there any written statements produced confirming the events which caused the claimant to return to Nigeria from her daughter, her daughter's father-in-law, a medical doctor or the Appellant's son. (RPD reasons at paragraph 28) The RAD notes that the RPD referred to the year 2011. The RAD finds that this is likely a typographical error as it is clear from a reading of the reasons that the panel member understood the alleged events causing the Appellant's return to Nigeria was in the year 2012. (RPD reasons at paragraphs 12, 18, 20, 21, 25, 26 and 27) The Appellant was asked by the panel member why she had no documentation to corroborate the events which caused her to voluntarily return to Nigeria; the Appellant stated that she "did not know that she had to produce it." [42] The RPD rejected this explanation and did not find it reasonable. The RAD finds the RPD did not err in rejecting this explanation and this credibility finding by the RPD was justified. The Appellant had produced affidavits from both her son and sister stating the abuse the Appellant had suffered and her reasons for leaving Nigeria, but she did not include the reason for her return to Nigeria. The RAD finds it is obvious that the Appellant understood or knew that she should provide evidence to support her claim, as she did so by requesting and providing the RPD with the affidavits. [43] The RPD clearly stated this finding was based on the fact that the Appellant had omitted the evidence of her return to Nigeria until only after its discovery by Minister's counsel and that her reasons for re-availing to a country where she claims to fear persecution goes to the core of her claim. [44] The RPD further found, in light of the existing credibility concerns with regards to the omission of the Appellant's trip to Nigeria, the Appellant's lack of documentation to support her reasons for re-availment directly undermines her credibility and finds the reasons stated for her return are not credible. [45] The RAD finds there was ample evidence upon which the RPD based its negative credibility findings regarding the Appellant's return to Nigeria, and therefore the RPD's findings are transparent and justifiable and ought to be accorded deference. The Appellant's Brother-in-Law [46] The Appellant argues that the panel perversely erred when it impugned her credibility that she did not provide any evidence to confirm that her brother-in-law was a politician with a high profile position within the government. The panel member misconstrued the evidence because she did not indicate anywhere in her evidence that her brother-in-law was a high profile politician within the government. The Appellant argues that her brother-in-law is a strong politician in Nigeria, and the evidence was supported by the affidavit from her sister. The Appellant further argues that she never testified that her brother-in-law holds any position in government. The Appellant argues that the panel member ignored relevant evidence and committed error in its assessment of the evidence regarding the lack of evidence, profile and political status of the Appellant's brother-in-law. [47] The RAD notes that the Appellant's brother-in-law is referred to in the affidavit of the Appellant's sister,18 as "XXXX XXXX XXXX who was a politician." The Appellant refers to her brother-in-law in her BoC narrative as a "strong politician."19 [48] The RPD makes reference to the Appellant's brother-in-law as a "strong politician in Nigeria, known as XXXX XXXX XXXX XXXX XXXX who belongs to the party in power and held a position as Board member of the party.20 The RPD found the Appellant had not produced any documentation to confirm the Appellant's brother-in-law's high profile or position within the government. A review of the audio recording confirms that the Appellant did not specifically state her brother-in-law held a position within the government. The RAD finds the RPD erred by referring to the Appellant's brother-in-law as holding a high profile position within the government. However, the RAD finds the RPD did not err in describing the Appellant's brother-in-law as a strong politician. In addition, the RPD's drawing a negative inference from the lack of corroborating documentation and finding that the Appellant's brother-in-law does not have the power or position alleged by the Appellant is reasonable. If the Appellant's brother-in-law was a strong politician in Nigeria, known as XXXX XXXX XXXX XXXX XXXX and he belongs to the party in power and held a position as Board Member of the party as alleged, it would be reasonable that corroborating documentation would be accessible to the Appellant to corroborate his high profile position in Nigeria. Re-Availment [49] The RPD considered Ward21 that, for a refugee claim to succeed, both the subjective and objective components must be met. [50] The RPD found the Appellant's re-availment in the face of alleged persecution brings her subjective fear into question, and it undermines the credibility of her claim. The RPD did not find the Appellant's explanation for doing so to be satisfactory, and her return, in her circumstances, to the place where the harm was feared does not support a finding that the fear existed or was genuine. [51] The RPD was guided by case law to support its analysis of the Appellant's return to Nigeria22 that a return to the country of nationality may indicate that a well-founded fear of persecution is lacking where the claimant's conduct is inconsistent with such fear. [52] The RAD finds the RPD's negative credibility finding regarding the Appellant's subjective fear was based on a consideration of all of the evidence in the case and that her actions were not consistent with her professed fear was justifiable, intelligible, and transparent, and falls within the range of possible, acceptable outcomes defensible to the facts and the law. Application for an Oral Hearing [53] The Appellant argues that, if the RAD does not find the Appellant to be a Convention refugee, it should hold an oral hearing pursuant to Section 110(6) of IRPA. [54] Section 110(3) of IRPA requires that the RAD proceed without a hearing, on the basis of the RPD's record, while allowing the RAD to accept documentary evidence and submissions from the Minister and the Appellant. The person who is the subject of the appeal may, pursuant to Section 110(4), present "only evidence that arose after the rejection of their claim or that was not reasonably available, or that the person could not reasonably have been expected in the circumstances to have presented, at the time of the rejection." Subsection 110(4) does not apply to evidence submitted in response to the Minister's evidence. [55] According to Section 110(6), upon which the Appellant relies, the RAD may hold a hearing if, in its opinion, there is documentary evidence referred to in 110(3) that raises a serious issue with respect to the credibility of the Appellant, that is central to the RPD's decision, and that, if accepted, would justify allowing or rejecting the refugee protection claim. In this appeal, where there is no evidence from or in response to the Minister, the documentary evidence referred to in Section 110(3) must be understood in relation to Section 110(4). [56] When read together, Sections 110(3), (4), and (6) establish that the RAD must not hold a hearing in an appeal such as this unless there is new (Section 110(4)) evidence, in which case the RAD may hold a hearing if that new evidence raises a serious issue with respect to the credibility of the Appellant, is central to the RPD's decision, and that, if accepted, would justify allowing or rejecting the refugee protection claim. [57] The RAD has found the new evidence submitted by the Appellant to be inadmissible. As such, the RAD must proceed without a hearing on the basis of the RPD's record, and her application for an oral hearing is denied. SUMMARY AND DETERMINATION [58] The RAD has found that the RPD did not err by ignoring relevant evidence or making erroneous findings in respect to credibility. The RPD clearly considered the credibility concerns in regard to the Appellant's fear of her deceased daughter's brother-in-law and his family. The RPD's reasons on credibility were supported by the evidence, and the findings were reasonable. [59] For these reasons, the Refugee Appeal Division, as per Section 111(1)(a) of the Immigration and Refugee Protection Act, confirms the determination of the Refugee Protection Division, namely, that XXXX XXXX XXXX (a.k.a. XXXX XXXX XXXX XXXX) is neither a Convention refugee nor a person in need of protection. [60] The Refugee Appeal Division dismisses the appeal. (signed) "C. Forbes" C. Forbes January 23, 2014 Date 1 RPD's record, Exhibit.10. 2 Newton v. Criminal Trial Lawyers' Association, 2010 ABCA 399, paragraph 44. 3 Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, 2008 SCC 9. 4 Canada (Minister of Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339. 5 IRPA, s. 110 (1). 6 IRPA, s. 107. 7 IRPA, s. 170. 8 IRPA, s. 110.3. 9 IRPA, s. 110.4. 10 RAD Rule 57. 11 Newton v. Criminal Trial Lawyers' Association, 2010 ABCA 399, paragraph 82. 12 Newton v. Criminal Trial Lawyers' Association, 2010 ABCA 399, paragraph 95. 13 Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, 2008 SCC 9, at para 47. 14 Appellant's record, pp. 14-17. 15 Raza, Syed Masood v. M.C.I. (F.C.A., no. A-11-07), Linden, Sharlow, Ryer, December 6, 2007; 2007 FCA 385. 16 Ibid., Raza, paras. 13-15. 17 RPD's record, Consolidated List of Documents, Exhibit 4. 18 Appellant's record, p. 12. 19 BoC narrative at paragraph 3. 20 RPD's reasons at paragraph 32. 21 Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, 103 D.L.R. (4th) 1, 20 Imm. L.R. (2d) 85. 22 Caballero, Fausto Reyes v. M.E.I. (F.C.A., no. A-266-91), Marceau, (dissenting) Desjardins, Letourneau, May 1993. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (April 9, 2013) Disponible en français RAD File No. / N° de dossier de la SAR : TB3-07975